TipSheet: Court Cases with Trump Agencies Will Make News in 2018
This special TipSheet is one in a series of reports from SEJournal’s Joseph A. Davis that looks ahead to key issues in the next year. Stay tuned for more in coming weeks and for the full “2018 Journalists’ Guide to Energy & Environment” special report in late January.
Republicans may currently control the White House and both chambers of Congress, but the nation’s judiciary is another matter. Many of the Trump administration’s environment and energy goals will ultimately be decided by the courts — a welter of important cases are already under way. And whether or not they all yield decisions in 2018, they will surely yield news.
Trump, his agency heads and his Congressional allies have pushed forward a broad deregulatory agenda with considerable early success. Environmental, conservation and public health groups do not have enough votes in Congress to stop them very often.
But they have the courts — and a lot of lawyers raring to go. The number of cases is far larger than we can list here (and many cases more complex than we have room to fully describe). But this is a quick checklist of some of the most important:
- Toxic Substances Control Act. After Congress in 2016 passed a long-needed overhaul of TSCA, the nation’s main law to control toxic substances in commerce, the task of implementing it has fallen to the Trump-Pruitt Environmental Protection Agency. The EPA implements the law via rulemaking, and to date at least three of its new or proposed TSCA rules have been challenged in court by a half dozen environmental and public health groups. The EPA has a long list of chemicals to evaluate for toxic risk and one key issue is how it prioritizes them (registration may be required). The cases will play out in 2018 and beyond.
- Clean Power Plan. The litigation over former President Barack Obama’s benchmark climate-control measure, which aimed to reduce carbon dioxide emissions from new and existing electric power plants, has been massive and complex. Implementation of the CPP was stayed during the Obama administration while courts considered challenges from industry. That wrangle is largely moot now, since the Trump-Pruitt administration has formally moved to withdraw the CPP rule (perhaps to replace it). There will be lawsuits over the rulemaking to withdraw the original rule — and further lawsuits over whatever (if anything) the Trump administration proposes to replace it. Much of 2018 will go to the withdrawal rulemaking. The real lawsuits will start after that action is finalized. Later there may be more lawsuits over a CPP replacement and even over the “endangerment finding” that undergirds federal climate controls, if the Trump administration heeds fossil-industry pleas to reverse that.
- Ozone transport. The interstate movement of photochemical smog (largely ozone) is something the Clean Air Act, or CAA, mandates EPA to regulate. The CAA also provides a legal framework for injured states to seek redress from emitting states. States (and industry and EPA) have fought in court over transport of ozone and its precursors for decades. Most recently in December 2017 a group of eight Northeastern (downwind) states have sued EPA itself for failing to protect them from emissions originating in the South and Midwest. That case will develop in 2018.
- Ozone attainment designations. The Clean Air Act requires EPA to declare which airsheds, such as metropolitan areas, meet or fail to meet its health-based standards for smog (ozone). This is politically and economically important because a nonattainment designation can make it hard to get permits for new industrial activities. In November 2017, the Pruitt EPA listed the areas in attainment, but did not officially designate any areas as being in nonattainment. In December 2017, the attorneys general for 15 states sued EPA for this failure. EPA now says it will issue the designations by April 2018, but meanwhile the lawsuit will be pending. Wait and see.
- Haze reduction suits. The Clean Air Act also mandates EPA to mount efforts against the regional haze that often impairs visibility in some of the wide-open spaces where Americans enjoy nature in the West and elsewhere. This regional haze is caused by a mix of pollutants, but especially fine particles. Some is natural, but much is caused by a mix of human activities that includes vehicles and industry. Regional haze is not merely an esthetic issue; it also causes health problems. Right now, EPA is involved in regional haze litigation with Arkansas and Texas.
Waters of the United States. Sure to be news in 2018 is a far-reaching case before the Supreme Court over the extent of federal regulatory jurisdiction under the Clean Water Act.
A far-reaching case before the Supreme Court will help determine protection of wetlands, such as this one along the Mississippi River. Photo: U.S. Army Corps of Engineers, Flickr Creative Commons
The original CWA of 1972 drew on a fabric of statute and precedent going back to before 1882 to define the jurisdictional reach of the CWA as “navigable waters.” Various conventions extended that to include wetlands and other waters for several decades after 1972. But Supreme Court cases in 2001 and 2006 blew up the traditional reading without offering any useful guidance about what “waters of the U.S.,” or WOTUS, the CWA actually covered. The Obama EPA in 2015 attempted to resolve the issue by regulation, with its “Clean Water Rule.” The agriculture, real estate and other industries objected to inclusion of wetlands and small streams. The Trump administration declared its intention to undo the Obama rule. But litigation over the rule ended up before the Supreme Court anyway. Justices heard arguments in November 2017 on a question that was largely procedural. Whatever the SCOTUS decision, newsy conflict over the WOTUS rule is likely to go forward on the regulatory front as well — with the Trump administration trying to delay the effect (subscription required) of the Obama rule while it tries to come up with its own (subscription required), a process likely to take years.
- Interior Dept. national monuments. The Trump administration’s Dec. 4 announcement of drastic cuts in existing national monuments has brought a lot of opponents out of the woodwork and into the courts. This was expected. Some of the many lawsuits were filed by Native American groups, some by environmental groups, and some by the outdoor recreation industry. The 1906 law, which authorizes the president to designate monuments, says nothing about undesignating them and the few boundary changes in history include none of such large size.
- BLM fracking rule. Fracking, the extraction of gas and oil via horizontal drilling and hydraulic fracturing of shale formations, is controversial, and will continue to be news in 2018. Some fracking takes place on leased federal lands, most often managed by the Bureau of Land Management. Much fracking is regulated by the states; the federal government abdicated much of its regulatory jurisdiction over fracking in 2005. The Obama administration in 2015 issued a rule governing fracking on federal lands — and requiring disclosure of fracking chemicals injected underground. But that rule was stopped by a federal district court in Wyoming in 2016. Appeal of that decision was mooted Dec. 31, 2017, when the Trump BLM finalized its rulemaking repeal of the Obama rule. That may be the end of it, but determined opponents of fracking on federal lands may come up with other legal challenges in 2018.
- BLM methane rule. Methane is a potent greenhouse gas and a valuable economic resource often wasted via leakage, venting and flaring at oil and gas installations. The Obama Bureau of Land Management in November 2016 issued a rule aimed at reducing methane emissions from oil and gas facilities on federal lands. Trump’s oil-friendly BLM tried to repeal the rule, but a federal court in October 2017 ruled that it had to go ahead. BLM, however, is still trying to sandbag that rule by delaying its effect. That will hardly be the end of it. You can be sure that litigation over the BLM methane rule will continue making news in 2018.
- EPA science panels. EPA needs sound science to make sound regulatory decisions and over the years a structure of expert scientific panels has grown up to provide some of the evidence and advice that goes into EPA rules and policies. Some of these panels are established by law and all of them have long operated under a set of administrative rules meant to ensure integrity, objectivity and sound science. The Trump administration came in determined to end that — firing some scientists who had EPA grants, firing others for other reasons and replacing them with appointees friendly to regulated industries and anti-regulatory states. Now some of the scientists and experts are suing Pruitt and EPA over what they see as corruption of science. Stay tuned.
- FERC pipeline suits. Pipelines have become a symbol and a surrogate for energy and environmental policy fights. For example, the Keystone XL Pipeline became a battle flag for the climate movement during the Obama administration. That battle was ultimately won under Obama, then lost under Trump … and perhaps won again, thanks to the forces of a free market. Many other pipelines have been proposed — and opposed by various grass-roots organizations. That conflict is intense. A key arena is the Federal Energy Regulatory Commission, or FERC, which regulates much interstate energy transport. It took much of 2017 for FERC to be constituted by the incoming Trump administration and to attain a quorum. The year 2018 will see FERC decisions on many controversial pipelines. It’s not just environmentalists who oppose projects like the Atlantic Coast Pipeline. There are a lot of property owners who do not like their property to be taken by eminent domain. The list of pipeline lawsuits and potential lawsuits is very long. Often, the news they make is local and regional.
- Kids climate suit. One of the sure-fire headline-grabbing lawsuits is by a group of young people against the federal government for not doing enough to stop climate change. It has been going on for a while and in the past the news was that courts allowed it to go forward instead of throwing it out for being unusual. Kids, after all, have a stake in the future which climate change threatens to spoil. The Trump administration only inherited the suit from the Obama administration — but has opposed it with its full strength. The year 2018 is likely to see the main contest in this suit begin.
Remember, this is just a partial list of some of the major environmental court cases we are likely to see in 2018.
Other newsworthy cases include one court’s order that EPA take quick action on its lead paint standard. Or the seemingly endless jousting over Interior’s effort to remove Yellowstone grizzlies from the Endangered Species List. Or uranium mining near the Grand Canyon. Or the very secrecy with which the Trump administration pursues deregulation. Or the many other cases (subscription required) related to energy, pipelines and public lands.
One way to keep an eye on environmental litigation is to keep an eye on the litigators. Groups like Earthjustice file a lot of lawsuits because they act as law firms representing other environmental groups. Others, like the Natural Resources Defense Council and the Center for Biological Diversity, advance many of their policy goals via litigation.
Major trade groups like the U.S. Chamber of Commerce and the National Association of Manufacturers are also active litigators involved in environmental issues. Also important to watch are Democrat and Republican coalitions of attorney generals, who often file lawsuits on environmental issues.
* From the weekly news magazine SEJournal Online, Vol. 3, No. 2. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.